Please note the content on this page is draft content for consultation purposes only. For current information, please see The practice standards.
The following standards apply to all practitioners undertaking legal assistance services in all areas of law. Failure to comply with these standards may impact on the practitioner's or firm's eligibility to undertake legally aided matters.
A practitioner providing legal assistance services must:
- have up-to-date knowledge and understanding of legal aid obligations and processes
- have up-to-date knowledge and understanding of the guidelines for legal assistance and the notes on the guidelines
- participate in training as reasonably required by Victoria Legal Aid (VLA)
- when taking instructions from a client, or as soon as possible thereafter, inform the client of any rights the client may have to apply for legal assistance unless there is no real possibility that the client is eligible to receive legal assistance
- proactively assist and support an applicant to apply for legal assistance
- submit all documents required by VLA in support of applications for Legal Assistance, reconsideration and independent review within a reasonable time
- inform VLA of any private funding arrangements the practitioner has or has had with the applicant
- inform VLA of any private funding capacity the applicant may have, that the practitioner knows about
- explain to the client what services will be provided or arranged for under the grant of legal assistance
- apply for a grant of legal assistance or an extension of assistance before undertaking any work or engaging third party providers (eg experts, barristers)
- not demand, take or accept payment or enter into a private costs agreement with a client for the matter in which legal assistance has been granted. This relates to professional costs and third party costs and disbursements
- keep the client informed of their entitlements, rights and obligations in relation to a grant of legal assistance
- notify VLA immediately of anything that may affect the client’s entitlement to legal assistance or obligation to pay a contribution to VLA
- advise third party providers of the relevant fees fixed by VLA before engaging their services
- where an interpreter or translator is required, only use those accredited and obtain legal aid funding for this in a timely manner
- accept all VLA referrals unless prevented by a conflict of interest or other reasonable cause
- promptly return to VLA for re-assignment any matter that the practitioner lacks the expertise or capacity to undertake (including any potential appeal)
- be mindful of any actual or potential conflict that may arise during the course of a matter, and inform VLA of the details of any conflict as soon as the conflict arises so that the matter can be re-assigned
- proactively and adequately supervise any work done by others on matters they have certified, ensuring they are aware of obligations and processes that apply to legally assisted clients, and these practice standards
- run the matter in the most effective, economic and efficient manner possible
- invoice for every billable event or work item at each stage of the matter
- make legally aided files and/or other materials available to VLA upon request, in the timeframe requested
- seek costs certificates or costs orders where appropriate and, where applicable make any application to the Appeal Costs Board to recover costs
- inform VLA of any opportunities to recover costs
- contact VLA before making any applications under:
- section 197 or 357 of the Criminal Procedure Act 2009
- any state or Commonwealth confiscation legislation where VLA would be an interested party to the proceedings or may be able to recover costs.
- notify VLA immediately of any complaint made against them to the Legal Services Commissioner or the Law Institute of Victoria, State or Federal Police or of any investigation commenced by the Legal Services Commissioner or other regulatory bodies
- notify VLA immediately of any claim made against them for professional negligence where the professional indemnity insurer has accepted liability
- assist VLA to resolve any complaint by providing all relevant information to VLA within the given timeframe
- not represent themselves as a VLA staff practitioner or other employee (does not apply to VLA employees)
- inform VLA of any concerns expressed by the court about the conduct of a legally aided matter
- provide a final report and final account to VLA and close the file in ATLAS within 30 days of the matter being legally finalised or the grant of legal assistance being terminated
- treat VLA staff with respect and courtesy
- not denigrate or misrepresent VLA
- ensure that dealings with clients, other legal professionals, service providers, the judiciary and other relevant parties are professional and appropriate.
Measures for practice standards relating to responsibilities as a legal aid practitioner
A practitioner providing legal assistance services must:
The practitioner must abide by the terms and conditions of their Certifier Status.
The practitioner must subscribe to Legal Aid Brief to keep abreast of any changes impacting their obligations and processes.
The file contains records of:
- documentary proof of matter
- evidence that allocation guideline/s met. This should include:
- proof of means
- all documentation necessary for forming an opinion as to merit.
- records which are consistent with information supplied to Assignments in support of the application for the grant of assistance, or which explain any inconsistencies or anomalies.
- the use of VLA guideline worksheets to record reasons for certifying that matters meet guidelines is highly recommended.
- have up-to-date knowledge and understanding of the guidelines for legal assistance and the notes on the guidelines
The file contains records of:
- documentary proof of matter
- evidence that allocation guideline/s met. This should include:
- proof of means
- all documentation necessary for forming an opinion as to merit
- records which are consistent with information supplied to Assignments in support of the application for the grant of assistance, or which explain any inconsistencies or anomalies.
The practitioner has made themselves available to attend training sessions where there has been advance warning. If the practitioner is unable to attend due to unforeseeable and/or unavoidable circumstances, the practitioner has provided reasons to VLA.
- when taking instructions from a client, or as soon as possible thereafter, inform the client of any rights the client may have to apply for legal assistance unless there is no real possibility that the client is eligible to receive legal assistance
The practitioner can demonstrate that any claim or accusation that the practitioner has failed to inform a client of any right to apply for legal assistance is false, or otherwise reasonable having regard to VLA’s means test, and any relevant guidelines and/or merits test.
The file contains records:
- that the application lodged within one week of initial instructions, unless file records clearly show that the delay has been caused by information not being supplied by the applicant within the time frame sought by the practitioner.
- that demonstrate that the practitioner has explained and assisted the client in exercising their reconsideration and review rights as appropriate
- all practitioners in the firm understand their obligations under the Legal Aid Act, and that any private bills legitimately issued to the client have been reviewed by the firm to ensure that there have been no charges included for liaising with VLA or preparing an application for legal assistance.
- submit all documents required by VLA in support of applications for legal assistance, reconsideration and independent review within a reasonable time
The file contains records that demonstrate:
- all documents were submitted to VLA at least 14 days before the next significant event or, where the next significant date is less than 14 days away, within one day of receipt of all relevant documents and/or client’s instructions
- requests for reconsideration were submitted within 14 days of the initial decision
- requests for independent review were submitted within 21 days of the date of the reconsideration decision.
The file contains records of:
- any private funding arrangements, which clearly explain the purpose, nature, extent and quantum of the private arrangements and why they are not inconsistent with a current grant of legal assistance
- when the private funding arrangement was exhausted (stage of matter and date)
- when and how these arrangements were communicated to Assignments
- advice to the client that arrangements with service providers (barristers, experts etc.) may not continue once private funds are expended, as services provided under a grant of legal assistance will be capped according to the fees approved by VLA.
- inform VLA of any private funding capacity the applicant may have, that the practitioner knows about
The file contains records of:
- any private funding capacity the client has
- advice given to the client about their private funding capacity and their eligibility for legal assistance
- when and how the client’s private funding capacity was communicated to Assignments.
- explain to the applicant what services will be provided or arranged for under the grant of legal assistance
The file contains records that the practitioner communicated the nature of the grant of assistance to the client. The explanation should include what work is funded and what, if any, issues relating to the legal matter will not be funded.
- apply for a grant of legal assistance or an extension of assistance before undertaking any work or engaging third party providers (eg experts, barristers)
The file contains records that an extension for each piece of work that requires one was sought and granted by VLA before the work is undertaken (including engaging third parties such as barristers, experts and interpreters).
- not demand, take or accept payment or enter into a private costs agreement with a client for the matter in which legal assistance has been granted. This relates to professional costs and third party costs and disbursements
The file contains records of:
- any private funding arrangements, which clearly explain the purpose, nature, extent and quantum of the private arrangements and why they are not inconsistent with a current grant of legal assistance.
- keep the client informed of their entitlements, rights and obligations in relation to a grant of legal assistance
The file contains records that the practitioner has:
- kept the client informed of their rights and obligations
- advised the client about any contribution which may be sought by VLA
- where VLA is seeking an Equitable Charge as a condition of assistance, advice to the client about the Equitable Charge and the client’s instructions to proceed in those circumstances.
- notify VLA immediately of anything that may affect the client’s entitlement to legal assistance or obligation to pay a contribution to VLA
The file contains records:
- of anything that may affect the client’s entitlement to legal assistance or obligation to pay a contribution, and that same has been communicated to Assignments
- which are consistent with information supplied to Assignments or which explain any inconsistencies or anomalies
The file contains records that the practitioner has advised any third-party service providers of VLA’s relevant fixed fees before engaging their services.
- where an interpreter or translator is required, only use those accredited and obtain legal aid funding for this in a timely manner
The file contains records that:
- where applicable, an extension was sought and granted by VLA before engaging the interpreter or translator
- any interpreter or translator used is accredited by National Accreditation Authority for Translators and Interpreters Ltd (NAATI) at professional level
OR - an interpreter or translator accredited by NAATI at a lower level (ie para-professional, language aide, recognised practitioner) is only used if:
- no interpreters or translators have been accredited at a professional level by NAATI in the required language
OR - the practitioner is unable to secure a professionally accredited interpreter or translator and is unlikely to be able to secure one in the future, and the use of a lower level interpreter or translator is approved by the Panel Certifier with responsibility for the file.
Family members or friends of the practitioner or the client are used only in limited circumstances such as confirming the time of an appointment, and only where express permission has been obtained from the client. The client’s instructions to this effect should be recorded on file.
Where the practitioner finds that a conflict exists, they can demonstrate that they provided a full and detailed rationale for being unable to act including:
- the reasons for arriving at the view that a conflict exists or other reasonable cause exists to prevent them acting
- the nature of the conflict or other circumstances
- an assessment of if and how the conflict or other circumstances can be adequately managed.
- promptly return to VLA for re-assignment any matter that the practitioner lacks the expertise or capacity to undertake (including any potential appeal)
The file contains records that:
- demonstrate that the practitioner, or someone under their supervision, has sufficient expertise and capacity to conclude a matter to the required standard
- where there the practitioner is uncertain about their expertise and/or their capacity to conduct the matter, Assignments was contacted promptly to discuss appropriate arrangements or to have the matter re-assigned
- where the practitioner has used an agent to deal with their lack of expertise and/or capacity, records on file should demonstrate that Assignments was contacted promptly to discuss appropriate arrangements or to have the matter re-assigned to another practitioner.
The file does not contain any records that the practitioner should reasonably have determined that they lacked the expertise or capacity and failed to return the matter promptly to Assignments to have matter re-assigned to another practitioner.
For example, if the matter involves significantly more complex issues than the practitioner’s previous experience, expertise or education (CDP) has equipped them for and they are unable to obtain appropriate supervision and/or assistance from another suitably experienced practitioner, VLA would expect that the practitioner contact Assignments immediately to arrange to have the matter re-assigned as they lack the expertise to undertake it.
Or, for example, if a practitioner with a heavy caseload is unable to devote sufficient time to have carriage of, or supervise another practitioner to undertake a matter in a way that ensures sufficient quality of work, it is expected that the practitioner contact Assignments immediately to arrange to have the matter re-assigned to another practitioner.
- be mindful of any actual or potential conflict that may arise during the course of a matter, and inform VLA of the details of any conflict as soon as the conflict arises so that the matter can be re-assigned
The file contains records:
- that conflict checks were undertaken at relevant times throughout the course of the matter (eg when the witness list was provided and when new witnesses were added to the list)
- detailing any conflicts or potential conflicts arising during the course of the matter
- that the practitioner did identify and resolve all conflicts that they reasonably should have identified
- that if the practitioner has found a conflict exists:
- the reasons for arriving at the view that a conflict exists, the nature of the conflict, and assessment of if and how the conflict can be adequately managed
- the practitioner contacted Assignments within two business days to explain the nature of the conflict
- if Assignments agree that it is appropriate to re-assign the matter due to conflict, the practitioner has facilitated the re-assignment of the matter in accordance with instructions from Assignments
- the client was informed of the conflict immediately following confirmation from Assignments that the matter will be re-assigned due to conflict.
- (for individual Panel Certifiers) proactively and adequately supervise any work done by others on matters they have certified, ensuring they are aware of obligations and processes that apply to legally assisted clients, and these practice standards
The file contains records that necessary supervision has been performed including:
- records of supervision arrangements, which demonstrate why the supervision arrangement was appropriate in this case
- regular file reviews of the progress of the matter were conducted
- actions arising and who was responsible for completing the actions
- clear accountabilities for delegated tasks.
For indictable crime matters
Indictable Crime Panel Certifiers can demonstrate adequate supervision by signing off on fully completed copies of the indictable crime quality tools (Brief Analysis and Case Strategy template, Committal Report and Trial Preparation Plan template, applicable indictable crime checklists).
The use of these tools is mandatory for VLA staff lawyers and highly recommended to private practitioners.
The file contains records that:
- account for delays or other matters preventing resolution of the matter.
- explain unusual or excessive invoicing.
The file contains records that the practitioner has invoiced VLA within 30 days of the finalisation of each stage of the matter.
- make legally aided files and/or other materials available to VLA upon request, in the timeframe requested
The file contains records that that any request by VLA for files and/or other materials were made available within the timeframe requested or, if not, the practitioner has provided reasonable explanation for the delay.
- seek costs certificates or costs orders where appropriate and, where applicable make any application to the Appeal Costs Board to recover costs
The file contains records that the practitioner has applied for an Appeal Costs Fund certificate or cost order within seven days of the hearing and has made any application to the Appeal Costs Board to recover costs within 14 days of the Appeal Costs Fund Certificate being granted.
The file contains records that the practitioner has informed Assignments of any opportunities to recover costs.
- section 197 or 357 of the Criminal Procedure Act 2009
- any state or Commonwealth confiscation legislation where VLA would be an interested party to the proceedings or may be able to recover costs
The file contains records that the practitioner contacted Assignments by telephone or email before making any such applications.
- notify VLA immediately of any complaint made against them to the Legal Services Commissioner or the Law Institute of Victoria, or of any investigation commenced by the Legal Services Commissioner or other regulatory body
Where a complaint has been made or investigation commenced, file records confirm that the practitioner has notified VLA about the issue and investigation within seven days, and has provided VLA with regular and timely updates about the progress of any investigation.
- notify VLA immediately of any claim made against them for professional negligence where the professional indemnity insurer has accepted liability
Where VLA becomes aware of any claim, it is expected that the file contains records about the insurance issue and a timely and full disclosure to VLA about the issue.
- assist VLA to resolve any complaint by providing all relevant information to VLA within the given timeframe
Records that the practitioner complied with VLA’s request for information or action regarding any complaints within requested timeframe or, if not, the practitioner has provided reasonable explanation for the delay.
The practitioner can demonstrate that any claim or accusation that the practitioner has represented themselves as a VLA staff practitioner or employee is false or that a reasonable person is likely to interpret the claim or accusation as false.
Where VLA becomes aware of concerns expressed by the court about the conduct of a legally aided matter, it is expected that the file contains records about the issue and full disclosure to VLA about the issue within seven days of the issue being raised.
- provide a final report and final account to VLA and close the file in ATLAS within 30 days of the matter being legally finalised or the grant of legal assistance being terminated
The file contains records that the final report and account have been provided to VLA within 30 days of the matter being legally finalised or the grant of assistance being terminated.
The file contains records that demonstrate that all communications with VLA staff, are respectful and courteous.
Any records held by VLA (e.g. file notes of conversations with VLA staff) demonstrate that all communications with VLA staff, are respectful and courteous.
VLA’s intention is not to stifle genuine disagreement between parties, but expects that the demeanour, language and approach used to raise and resolve the disagreement is professional at all times
Practitioners must be able to substantiate (via verifiable records) any comments, claims or accusations that are attributable to them (whether on file, in court, in communication with clients or potential clients or in the public domain) that are critical of VLA, represent VLA in a negative manner or relate to perceived failures by VLA.
- ensure that dealings with clients, other legal professionals, service providers, the judiciary and other relevant parties are professional and appropriate
The file contains records that the practitioner has behaved in accordance with their professional obligations when interacting with these parties and that dealings with these parties is professional and appropriate
Any records held by VLA (eg file notes, complaints) demonstrate that all such dealings are respectful and courteous.
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